THE CAUSES OF DISSATISFACTION OF THE ADMINISTRATION OF JUSTICE by Roscoe Pound, Reports of the American Bar Association Vol. XXIX, 1906
Posted by Site Staff on Sunday February 17, 2008
Roscoe Pound (1870)-(1964) was a highly respected legal scholar. In 1906 he addressed the American Bar Association regarding The “Causes of Popular Dissatisfaction With the Administration of Justice”. His theme was the American judicial system as a result of technicalities, game theory and inability to get to the substance of cases had caused itself to come almost to a grinding halt. He emphasized that delay and dilatory tactics, though legal, placed litigation in the position of not being in the best interests of the parties. He discusses, in detail, why the court system was failing.
In the “Merger of Law and Mediation: Lessons from Equity Jurisprudence and Roscoe Pound”, Jacqueline M. Nolan-Haley, Cardoza Journal of Dispute Resolution Vol 6, p. 57, 2004 discusses “decadence of equity” (Roscoe Pound) and the institutionalization of the court system with concerns being the blending of settlement with adjudication, mediation and the law. The editor of this newsletter has personally experienced the inner workings of the American court system and can vouch for every point Roscoe Pound puts forth.
Delaying tactics by attorneys and/or their clients, demurrers, unnecessary and lengthy discovery, dilatory filings, frivolous filings, bad faith filings, motions, unnecessary motions and game theory all add up to failure of the American court system to be in the best interests of the parties. Alternative Dispute Resolution (ADR) proponents are concerned about ADRs becoming too involved with the judicial system. For instance court ordered mediation and arbitration with loaded dockets giving way to expedience, muscle sessions and basically too much pushing. Mediators and arbitrators could be placed in a position of having quotas to meet. These issues must be looked at and thought out carefully. Many scholars believe that this is occurring with ADR Good examples of this are domestic court ordered mediation, and the voluminous filings in small claims courts.
Roscoe Pound also discusses jurisdictional matters where cases are constantly being transferred from one court to another. He voices his concern, in particular, in this occurring between State and Federal courts continuously.
The court system in the U.S. has reached the point where interests of parties and the doing of justice are secondary to the process of the law.
